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What is the substance of tripartism in the international labour organisation?: Criteria for the verification of credentials at the International Labour Conferences *

Published online by Cambridge University Press:  07 July 2009

H. van der Kooy
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Extract

The signature of the Treaty of Versailles in 1919 marked the birth of the International Labour Organisation (ILO); the ILO Constitution formed Chapter XIII of the Treaty.

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Articles
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Netherlands Yearbook of International Law , Volume 8 , December 1977 , pp. 73 - 106
Copyright
Copyright © T.M.C. Asser Press 1977

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References

1. Landelius, , Workers, Employers and Governments (Stockholm, 1965) p. 21, n. 3.Google Scholar

2. See, Report of the international conference of trade-unions, held from the 5th until the 9th of February 1919 in the Maison du Peuple at Bern, ed., the International Federation of Trade Unions. Procès-verbal de la conférence Internationale des syndicats, du ler au 4 octobre 1917 à la Maison du Peuple à Berne. (Berne: Unionsdruckerei, 1917) ed., L'Union Syndicate InternationaleGoogle Scholar. Report for the years 1913 to 1919 (of the) International Federation of Trade Unions. (Berlin: Legien, 1919).Google Scholar

3. Official Bulletin of the ILO (O.B.) Vol. XXXIX ('56), pp. 475–599.

4. Ibid., p. 478.

5. It is true that Art. 3, para. 5 Constitution contains basic concepts in addition to those mentioned here, e.g., “Members” and “countries”, which raise questions on ILO's admission policy: must Members be countries in the sense of “recognised State”; what is the standing of the Ukraine and Byelo-Russia; what status have rebellious parties, etc.? These questions are not, however, specific to the ILO, and will not be dealt with here. Further, there are the questions of the exclusively workers' or employers' character of organizations, which is dealt with in Sec. III.B, and the restrictive clause “ … if such organizations exist …”, dealt with in Sec. III. A. The controversial question of what importance ought to be attached to the municipal legal recognition of organizations and thus their legal existence (see Record of Proceedings, 19th session International Labour Conference – R.P. 19th S., p. 722) also comes under this last heading. On this problem, further reference may be made to Hoefer-van Dongen, P., “Conventie No. 87 van de ILO en de vrijheid van vakvereniging in Nederland”. [Convention No. 87 of the ILO and the freedom of association in the Netherlands], 28 Sociaal Maandblad Arbeid (1973), pp. 660–671, 753–766Google Scholar. This article will contain only an outline of this question, with regard to the credentials of South African workers' delegates. (Section III.C.5)

6. Art. 3, para. 5; text in: Constitution of the International Labour Organisation and Standing Orders of the International Labour Conference (Geneva, 1975).Google Scholar

7. Art. 3, para. 9.

8. For reference, see n. 6.

9. Art. 26, para. 5(b) S.O.

10. Art 26, para. 7.

11. R.P. 16th S., '32, p. 49.

12. Ibid., pp. 544–573.

13. The Governing Body is provided for in Arts. 2 and 7 of the Constitution. It has a tripartite structure in the same 2–1-1 proportion as that of the Conference. A certain number of Governmental seats, currently 10 of the 28, are reserved for the “Members of chief industrial importance” (Art. 7, para. 2 Constitution). Two of the employers' and two of the workers' seats are reserved for non-Europeans. The Governing Body appoints the Director-General (Head of the International Labour Office), supervises a large number of technical committees, as well as the activities of the International Labour Office. It settles the agenda for the Conferences and ensures adequate preparation of the various items on the agenda. It acts on behalf of the ILO in its contacts with other organizations, and receives and considers complaints within the framework of ILO's complaints procedure.

14. In deciding whether a vote is valid or invalid, only the votes actually cast for and against count; abstentions do not count. (Art. 20, para. 1(1) S.O.).

15. R.P. 30th S., '47, pp. 296–297, 372–373, 388.

16. R.P. 10th S., '27, pp. 514–515.

17. R.P. 12th S., '29, pp. 662–663; R.P. 13th S., ”29, pp. 280–281.

18. And within the meaning of the Declaration of Philadelphia, annexed to the Constitution in 1944 as the “Declaration concerning the aims and purposes of the International Labour Organisation”.

19. “… those conditions of liberty which are presumed by the agreement referred to in paragraph 5 of Article 3 of the Constitution … ”. R.P. 27th S., '45, pp. 308–317.

20. See, R.P. 39th S., '56, pp. 577–578, 582–585; R.P. 40th S., '57, pp. 589–590.

21. R.P. 30th S., '47, p. 345; in 1946, Argentina was not represented at the Conference.

22. R.P. 2nd S., '20, pp. 493–495; R.P. 5th S., '23, p. 223.

23. R.P. 5th S., '23, p. 223; R.P. 7th S., '25, pp. 653–661.

24. R.P. 10th S., '27, p. 514.

25. P.C.I.J. Series B. No. 1, pp. 19–21.

26. See R.P. 38th S., '55, pp. 534–536; R.P. 46th S., '62, pp. 609–612.

27. A country like Japan, which was taken to be covered by this rule in 1919, could hardly be excluded from the ILO on account of its competitive position in the market for manufactured products. For this reason, Australia and South Africa supported Japan's claim for membership of the League of Nations and, thus, of the ILO. Even in 1905 and 1906, some countries were willing to sign the Phosphorus Convention only if Japan signed as well. See Shotwell, J.T., ed., The Origins of the International Labour Organisation, Vol. 1 (New York, 1934) pp. 10–11, 200.Google Scholar

28. R.P. 14th S., '30, pp. 96–97, 550–551.

29. R.P. 36th S., '53, pp. 317–319.

30. R.P. 36th S., '53, pp. 258–259, 317 et seq.

31. Three quotations may illustrate this discussion. In respect of the credentials of the Japanese workers' delegate, Jouhaux stated in 1923 that “… ce n'est pas en substituant la volonté des travailleurs inorganisés à la volonte des… travailleurs organisés que l'on crée une admosphère favorable au développement des organisations syndicales” (R.P. 5th S., '23, p. 71); in the English version of the Record of Proceedings: “I cannot think that it is encouraging these organisations if no account is taken of their opinion” (ibid., p. 72). Mahaim considered, however, that “il… paraît excessif de soutenir que c'est là encourager les ouvriers a ne pas s'organiser” (ibid., p. 69). This remark has been omitted in the English version. Troclet, finally, says on this question: “On peut conclure qu'il vaut mieux consulter les organisations professionelles, même si elles ne sont pas très représentatives … On comprend aisément la thèse des travailleurs syndicalistes qui s'estiment plus qualifiés pour défendre les intérêts des travailleurs qu'un quelconque délégué choisi dans une masse inorganisèe”. Troclet, L-E., Législation sociale Internationale, pp. 350–351Google Scholar, quoted by Vogel-Polsky, (Eliane) in Du Tripartisme à l'Organisation Internationale du Travail (Bruxelles, 1966), p. 97Google Scholar. See further, Berenstein, op.cit., pp. 88–91, and R.P. 5th S., '23, pp. 227–230.

32. R.P. 6th S.,'24, p. 237.

33. Berenstein, , Les organisations ouvrières. Leurs competénces et leur rôle dans l'organisation Internationale du Travail (Paris, 1936), pp. 35, 90.Google Scholar

34. At the preparatory stage of the Constitution, the French version of the original British draft Convention changed “organisations industrielles” into “organisations professionnelles” in order to cover the agricultural sector as well, thus corresponding to the English “industrial organizations” (Official Bulletin (O.B.), Vol. 1, pp. 9–16, 34).

35. Cf., R.P. 5th S., 23, p. 250; R.P. 39th S., '56, pp. 579–582, 601–604.

36. R.P. 3rd S., '21, pp. 608–613.

37. R.P. 14th S., '30, pp. 566–570.

38. R.P. 43rd S., '59, pp. 618–620. To the question of whether, for instance, a teachers' association is an “industrial organization”, the writer would answer in the affirmative. The test for an industrial organization is, among other critera, whether members are organised in their capacity of employer or worker. A teachers' association would not, however, satisfy the requirement of “corporative universality” dealt with in Section III.C.2.

39. Berenstein, op. cit., pp. 41, 83–85. Until 1944, workers' delegates in the Credentials Committee always came from the IFTU, in 1945–1949 from the right wing of the WFTU, and, after the split of the WFTU in 1949, from the ICFTU.

40. R.P. 11th S., '28, pp. 547–556.

41. R.P. 33rd S.,'50, p. 398.

42. For credentials to be effectively scrutinised, a protest is required. In respect of fascist delegates, protests came only from workers and were directed at workers' representatives.

43. Which may be based on the reasoning mentioned on p. 81, “if this organization is disqualified, there is no other, so the Government has a free choice”.

44. R.P. 19th S., '35, pp. 502–503.

45. Minutes 78th Session Governing Body, pp. 160–162; idem 79th Session pp. 24–40.

46. In 1937, the argument “there is no other organization” could still be applied to the Soviet Union (R.P. 23rd S., '37, p. 543). Even in 1956, this argument was used in respect of the Spanish fascists (R.P. 39th S. '56, pp. 579–581), and in 1961 the Committee said it lacked jurisdiction to hear objections the Portuguese fascists. (R.P. 45th S., '61, p. 673).

47. R.P. 37th S., '54, p. 434.

48. R.P. 36th S.,'53, p. 319.

49. To which the “free” employers replied that, in the countries concerned, the economy was centralised to such a degree that lower authorities, such as boards of management etc., no longer enjoyed the freedom of policy and management characteristic of free enterprise. (See, e.g., R.P. 39th S., '56, p. 588).

50. In 1919, 1921, 1922, 1923;in 1924 the mandate of the Japanese workers' delegate was not expressly contested.

51. R.P. 1st S., '19, p. 207.

52. R.P. 3rd S., '21, pp. 631–642.

53. In 1923, 1926, 1934 and 1935, Albania, Persia, Siam, China and Lithuania gave absence of organizations as the reason why they had not sent complete delegations.

54. R.P. 39th S., '56, pp. 574–577, 579.

55. Quoted by Berenstein, op. cit., p. 69.

56. R.P. 1st S., '19, pp. 105–110, 203.

57. R.P. 2nd S., '20, pp. 496–500.

58. Dated 3 February, 1920; R.P. 2nd S., '20, pp. X, XII.

59. R.P. 8th S., '26, pp. 422–427.

60. R.P. 13th S., '29, p. XVI. This problem is still relevant, cf., the Maritime Conference of 1970, where the Committee once again formulated the principle of “corporative universality” in reply to protests against the Indian and Colombian delegates. R.P. 55th S., '70, p. 154.

61. R.P. 3rd S., '21, pp. 608–613.

62. And, in addition, had an insufficiently trade union character.

63. R.P. 11th S., '28, p. 547.

64. R.P. 20th S., '36, p. 537.

65. R.P. 53rd S., '69, p. 536.

66. This minority report in fact amounted to a complaint based on violation of the freedom of association. Such complaints have always been considered by the Committee with the utmost reticence. See also, pp. 94–95 infra.

67. R.P. 15th S., '31, pp. 515–516.

68. R.P. 14th S., '30, pp. 551–552.

69. R.P. 33rd S., '50, p. 397: The Venezuelan Government had dissolved the most representative organizations and “… was obliged to appoint the workers' delegate and his advisers from among the members of local organizations”.

70. Cf., Congo-Brazzaville – R.P. 49th S., '65, pp. 500–504.

71. O.B. Vol. I, pp. 231, 233.

72. R.P. 8th S., '26, pp. 432–433.

73. The argument that “the power of the Committee to reject credentials is of a discretionary character” had previously been formulated by the Committee in 1959 in respect of the objections to the credentials of the South African workers' delegate lodged by the South African Trade Unions' Council (SATUC), and in 1969, with regard to the credentials of the Greek workers' delegation (R.P. 43rd S., '59, pp. 628–631; R.P. 53rd S., '69, p. 536). Perhaps the Committee held the view that verification of credentials is not a legal act and the Credentials Committee is not a legal tribunal. For a discussion on the legal or non-legal character of the verification of credentials at the International Labour Conference, see Berenstein, op.cit., p. 108; the Report of the Director General (Morse) of 1963, pp. 141–151; R.P. 16th S., '32, pp. 469–470, 513–519. In the strict sense, the Committee has no power to reject credentials. It can only propose rejection to the Conference. Its powers of final decision are limited to unanimous declarations of non-receivability of objections (see p. 77). The Committee's “discretionary power” can never amount to more than a freedom of interpretation within the confines of the Constitution and its accompanying practice. In 1959 the Committee itself defined its power more clearly: “The Committee may consider that, even when a designation has, in its opinion, been made not strictly in accordance with the Constitution, circumstances are such that they do not necessarily justify the submission to the Conference of a proposal to invalidate”. (R.P. 43rd S., '59, p. 630).

74. R.P. 57th S., '72, p. 536.

75. R.P. 35th S., '52, pp. 434–436.

76. R.P. 13th S., '29, p. 300.

77. As from 1962, the discussion moved from credentials to attempts to cause South Africa to resign its membership. In fact, South Africa withdrew fiom the International Labour Organisation a few months before the 1964 Conference.

78. In 1955, the newly established SACTU wrote in a letter to the Credentials Committee that multiraciality should be a criterion of representative character. This had, however, been advanced as early as 1927 by the Belgian workers' delegate and IFTU leader Mertens, then a member of the Credentials Committee, in connection with the protest of the South African Industrial and Commercial Workers' Union (ICU) which had been ignored by the Committee. (R.P. 10th S., '27, p. 33). In 1935, the South African government itself argued for its choice of a workers' organization that was not the most numerous, by the fact, inter alia, that the smaller organization included large numbers of coloured members, whereas unions associated to the most numerous organization barred non-white workers. (R.P. 19th S., '35, p. 728).

79. A view which reappears on pp. 99–100.

80. R.P. 43rd S., '59, pp. 615–616.

81. See n. 115.

82. The writer has chosen to use the term “African” rather than the insulting word “native” or the factually incorrect “Bantu”, both of which are used by the whites in South Africa to refer to the black population.

83. On the basis of the Industrial Conciliation Act of 1956. In 1963, the Constitution of the South African Trade Unions' Council (SATUC) – a recognised, white organization – was amended to the effect that, in theory, the membership of African workers is not totally impossible.

84. See Berenstein, op. cit., p. 116 and R.P. 10th S., '27, p. 33. Further R.P. 19th S., '35, pp. 721–722; 42nd S., '58, pp. 576–578; 43rd S., '59, pp. 628–631, 44th S., '60, pp. 569–570; 49th S., '65, pp. 500–504.

85. For a study on the relationship “recognition – representativeness – freedom of association”, see n. 5, Hoefer.

86. Cf., the Committee's summing up, in 1962, when it considered objections to the credentials of the Cuban employers' delegate: R.P. 46th S., '62, pp. 616–618.

87. Viz., a government constituted illegitimately and not generally recognised.

88. R.P. 27th S., '45, p. 352.

89. Since 1945, objections relying on the formulation of this conclusion have always been rejected; in respect of Argentina, at the next four Conferences (starting from 1947), because the Committee held the evidence produced to be insufficient.

90. R.P. 51st S., '67, pp. 546–547; R.P. 52nd S., '68, pp. 531–533.

91. Supra pp. 88–89.

92. R.P. 53rd S., '69, p. 536.

93. R.P. 54th S., '70, p. 269.

94. R.P. 55th S., '70, p. 56.

95. R.P. 56th S., '71, p. 374.

96. R.P. 57th S., '72, p. 303; R.P. 58th S., '73, pp. 146–147. The Conference of 1976 (61st Session) adopted a Convention concerning tripartite consultations to promote the implementation of international labour standards (No. 144) and an almost identical Recommendation (No. 152), (Trb. 1976 No. 177), Art. 1 of the Convention reads: “In this Convention the term 'representative organizations' means the most representative organizations of employers and workers enjoying the right of freedom of association”. Although this Convention and the subject of this paper are two different matters, the question may arise how the wording of this Article will affect the verification of credentials at the Conference. Both the implementation of the Convention and the annual delegation of representatives to the International Labour Conference are the responsibility of governments, and, on that level, the interpretation of both the Convention and of Article 3, para. 5 Constitution could be affected by a degree of mutual influence. With the coming into force of Convention No. 144, the ILO will have the concept “representative organizations” in the sense of this new Convention, as well as the existing concept of “representative organisations” analysed above. The substance of “representative organizations” in the context of the new Convention will be that of “most representative organizations” as analysed below, with the additional requirement that these organizations must enjoy “the right of freedom of association”. The difficulties which this requirement has been causing to the Committee have been dealt with above. Art. 3, para. 1 (and Art. 2, para. 2) of Convention No. 144-contain the same exception as is contained in Art. 3, para. 5 Constitution: “The representatives of employers and workers for the purposes of the procedures provided for in this Convention shall be freely chosen by their representative organizations, where such organizations exist”. (Art. 3, para. 1 Convention No. 144 – italics supplied). Given the application of the exception in Art. 3, para. 5 Constitution, in the verification of credentials, the question may be raised what will be the significance of Art. 3, para. 1 Convention No. 144 for tripartite representation on the national level, for which this Convention is intended to provide.

97. The fifth trade union federation, the National Labour Secretariat (NAS) refused any co-operation.

98. See, Kupers, E., “Het Permanente Hof van Internationale Justitie en de kwestie Serrarens” [The P.C.I.J. and the Serrarens questions], De Vakbeweging (1922), Vol. II, pp. 336–343Google Scholar. A subsidiary argument was that the Catholic trade union movement already had connections, whether formal or informal, with the chairman of the Netherlands delegation, Mgr. Nolens, thus giving the ICCTU organizations a certain influence in the Conference.

99. P.C.I.J. Series B, No. 1 of July 1922, p. 9.

100. The request of the Conference for an opinion as to the interpretation of Art. 389 of the Treaty of Versailles (Art. 3 Constitution), and as to the rules which should be observed in order to comply with the terms of this article had been changed by the League of Nations Council into a request for an opinion upon the question whether the Dutch workers' delegate was nominated in accordance with Art. 389, para. 3 of the Treaty of Versailles.

101. R.P. 14th S., '30, p. 586.

102. R.P. 30th S., '47, p. 344.

103. R.P. 32nd S., '49, pp. 381–383.

104. Another argument was that the interests of the majority organization were not damaged by the delegation of this fourth adviser to the Conference, since it retained the three adviser posts promised previously.

105. R.P. 14th S., '30, pp. 584–591. Arguments for it had, in essence, been advanced as early as 1921 by Aalberse, then Dutch Minister of Labour (cf., Landelius, op. cit., p. 266).

106. R.P. 39th S., '56, p. 579. Not until 1959 did the Committee enter into the racial argument (R.P. 43rd S., '59, pp. 615–616) Though this argument is recognised to be valid, it is insufficient to compensate for the small membership – SACTU continues to be a “minority organization”.

107. A clear example is found, again in South Africa, in 1959, when consultations were held with white organizations which were smaller or as small as the excluded black workers' organization, SACTU. R.P. 43rd S., '59, pp. 615–616.

108. R.P. 19th S., '35, p. 489.

109. R.P. 27th S., '45, p. 305.

110. Ibid., pp. 305–308.

111. R.P. 30th S.,'47, p. 346.

112. R.P. 46th S., '62, pp. 609–612.

113. R.P. 31st S., '48, pp. 111, 304–306. As regards numbers, there are no clear figures. The CGT claimed to represent 80 per cent of the organised workers. The French Government stated that the CGT's membership was a little smaller than that of the other confederations taken together – which would have been a perfect copy of the Dutch situation in 1921.

114. As from 1953 (after Jouhaux's death), CGT-FO and CFTC took turns.

115. R.P. 43rd S., '59, pp. 619–620. In 1963, it happened anyway. In respect of South Africa an “identical complaint” was reconsidered because of changed circumstances (see also, Vogel, op. cit., p. 117). That it did happen was, however, due to the Conference rather than the Credentials Committee: a minority proposal from the Committee – one of many, including the proposals concerning the Italian workers' delegations in the twenties and thirties – was adopted by the Conference.

116. R.P. 49th S., '65, p. 544.

117. R.P. 45th S., '61, p. 667. The first objections date from 1951 and 1952.

118. R.P. 51st S., '67, p. 544.

119. Considering the representation in the years 1968–1974, one finds, in fact, a rotation pattern including the UIL, CISL and CGIL. Moreover, these groups have formed a federation since 1972 (cf., 66 De Vakbeweging, No. 28–3 Aug. 1972, p. 3).

120. The struggle for political liberation had been successful for more or less the whole of Africa. As a settler-State South Africa formed an exception, and this is precisely why apartheid could become a rallying issue for the new, and in many respects divided, States.

121. An example of the sympathy of the Conference in the first period may be furnished by the way in which it received the proposal of the Indian workers' delegate, Giri, in 1927, in respect of the discussion of forced labour, a specifically colonial problem. Giri proposed that the colonial powers would, on that occasion, include representatives of the native workers in their delegations. His proposal received warm support from the Standing Orders Committee and, April 1928 (39th Session), the Governing Body instructed the Director of the International Labour Office to include a recommendation to that effect in the notices for the 1929 Conference (O.B., Vol. XIII, '28, p. 60). The Netherlands sent Hadji Agoes Salim as workers' adviser to the 1929 and 1930 Conferences.

122. Which, especially in the 1920's and 1930's – the Serrarens affair comes within this framework – may be related to the position of the trade-unions which, as a result of depressions, etc., did not have the power expected in 1919.

123. De Vakbeweging, 1926, pp. 289–296; R.P. 8th S., '26, p. 99: “… we shall be compelled to return to our former practices”.

124. Op. cit. in n. 5.

125. International Association for Labour Legislation.

126. See on these developments:

Alcock, (Antony), History of the International Labour Organisation, (London, 1971);CrossRefGoogle Scholar

Scelle, (G.), L'Organisation Internationale du Travail et le B.I.T., (Paris, 1930);Google Scholar

Lusignan, (Guy de), L'rganisation Internationale du Travial, (Paris, 1959);Google Scholar

In Shotwell, (J.T.) ed., The origins of the International Labour Organisation, (New York, 1934) vol I:Google Scholar

Mahaim, (Ernest), “The Historical and Social Importance of International Labour Legislation”;Google Scholar

Delevigne, (Sir Malcolm), “The Pre-War History of International Labour Legislation”;Google Scholar

Riegelman, (Carol), “War-Time Trade-Union and Socialist Proposals.”Google Scholar

127. Mahaim, in Shotwell, op. cit., Vol. I, pp. 10–11, 200.